RE YASAR MUMTAZ

CACV 199/2019

[2020] HKCA 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 199 OF 2019

(ON APPEAL FROM HCAL NO. 1066 OF 2017)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 9 December 2019 ([2019] HKCA 1376) (“the Judgment”), this court (Hon Cheung and Au JJA) dismissed the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) dated 12 April 2019 ([2019] HKCFI 344), refusing leave to apply for judicial review. 

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 11 December 2017 and the decision of the Director of Immigration (“the Director”) dated 10 August 2017 rejecting the applicant’s non-refoulement claim. 

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 10 December 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. 

6.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to inform court of final appeal. There is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were favor on reject my claim. Actual life occur different situation then mentioned in the COL Information. Officer and court prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The Decision betrey minorities a bias and formula approach unlikely fairly access the danger of my life and clearly calcute to reject my claim.”

7.  In compliance with the directions given by Master Au-Yeung on 12 December 2019, the applicant lodged his written submissions on 23 December 2019.  In the handwritten written submissions, he argued that he lacked legal representation in his BOR2 risk assessment before the Director and that he did not have an oral hearing before the Judge.  He also argued that he did not have sufficient language assistance.

8.  We have duly considered the applicant’s Notice of Motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  First, the applicant has not in the Notice of Motion and written submissions identified any errors in the Judgment.

11.  Second, as to his complaint of not having an oral hearing, the applicant did not request an oral hearing before the Judge and we had dealt with his abandonment of oral hearing at [2]-[4] of the Judgment. This complaint has no basis.  

12.  Third, the other grounds of appeal and arguments in the applicant’s written submissions were not raised before the Judge or this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it[1]. Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].   

13.  In other words, none of the grounds raised by the applicant are viable grounds of appeal.  

14.  In any event, the applicant failed to identify in the Notice of Motion or the written submissions any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

15.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are therefore not met.  Accordingly, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal and dismiss his Notice of Motion.